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Fishermen risk arrest and incarceration for straying into Indian or Pakistani waters

India - Pakistan: Prisoner Repatriations Bring Hope For Now

by Beena Sarwar, 2 January 2009

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Inter Press Service

KARACHI, Dec 31 (IPS) - As the New Year dawns, the repatriation by India of 66 Pakistan nationals brings hope for hundreds of Pakistanis and Indians incarcerated in prisons across each other’s countries — and for peace between the South Asian neighbours.

Before the bloody attacks of Nov. 26 in the port city of Mumbai — that led to tensions escalating between the nuclear-armed neighbours — it was decided that the prisoner release would take place in January.

According to Indian investigators, a group of 10 heavily armed men used inflatable speed boats to enter Mumbai before taking over two luxury hotels and a Jewish boarding house, holding off Indian commandos for the next three days with grenades and automatic weapons.

The Mumbai attacks ended with all the gunmen being killed except one who was taken prisoner and identified as a Pakistani national. Mounting tensions between India and Pakistan, as they engaged in an all-too familiar blame-game against each other, led to a suspension of the composite dialogue process between the two.

The bilateral talks had raised hopes that the governments would finally take a humanitarian view of the release of prisoners and inadvertent border-crossers.

At present, even in peace time, both countries treat each other’s arrested citizens "like prisoners of war," Mohammad Ali Shah, chairperson of the ten-year old Pakistan Fisherfolk Forum, told IPS.

"As virtual prisoners of war, the arrested people are returned only through prisoner exchanges, when both countries talk. They have no legal rights. They cannot challenge their arrest or engage a lawyer. They don’t even have access to consular services."

Fishermen make up the bulk of the 300 or so Indian prisoners in Pakistani jails. Indian and Pakistani security agencies regularly arrest fishermen from each other’s countries for crossing the maritime border, also seizing their boats, equipment and catch.

Shah said that security forces on either side even resort to firing when attempting to apprehend fishermen straying over the maritime border. Eighteen Pakistani and four Indian fishermen have been killed in such incidents over the last two decades, he said.

The Mumbai attacks halted the process of reciprocal exchange of prisoners. Pakistan had released 99 Indian fishermen and two other Indian citizens on Nov. 25 and India was to reciprocally release 11 Pakistani fishermen when the attacks took place.

In any case, as Shah said, after each release, "they soon catch some more and we are back to square one. We need to change our rules of engagement for long term change to take effect".

Shah said that both countries must come to a permanent solution that includes a policy in which they no longer arrest each other’s fishermen for maritime boundary violations. "In fact, these arrests violate the U.N. Convention on Law of the Sea that prohibits the arrest of fishermen crossing a maritime border."

Article 73 (enforcement of laws and regulations of the coastal state) of this 1982 Convention, states that arrested vessels and their crews "shall be promptly released upon the posting of reasonable bond or other security". Penalties for violations "may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment."

Furthermore, "In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed’’.

On Dec. 23, India said it had arrested 12 Pakistani fishermen and seized their boat for straying into Indian waters.

Fishermen as well as travellers arrested for various violations are routinely denied consular access. The governments do not inform each other after such arrests until "after the arrested persons have served their term after being convicted," Sanjay Mathur, first secretary at the Indian High Commission in Islamabad, told IPS.

This can take years. Mathur said that most cases coming to public notice were those in which the prisoner’s family or friends somehow learnt of the arrest and took up the issue, engaging lawyers and notifying the media.

Most families of the arrested person remain ignorant of the arrest and whereabouts for lengthy periods of time. In some cases, even after prisoners are returned, they have nowhere to go if they have lost track of their families, or their families have disowned them.

Of the eight Pakistani former prisoners released on Nov. 15, four, aged 25 to over 60 years old, had to be lodged in an orphanage in Lahore. According to a newspaper report, they had all lost their mental balance ("Living tales from Indian prisons," Dawn, Nov. 25, 2008).

One of them, "almost childlike in his demeanour," showed the reporter, Issam Ahmed, "numerous scars on his skull, legs, and face — the result of electric shocks given by Indian jail staff". Another recounted "being beaten badly and humiliated over the course of his two-year incarceration".

Pakistanis arrested in India are most often apprehended for violating the stringent visa rules that apply to them. Visas are usually valid for 15 to 30 days, restricted to visiting the cities (up to three) specified in the visa. The port and mode (air, road or rail) of arrival and departure must be the same. Unless specially exempted, they have to report to the police within 24 hours of arrival and departure.

Among those waiting to be released is Mohammad Asif who was arrested in New Delhi for overstaying. Asif, who is married to an Indian woman and has three children from her, told reporters in India that he was trying to complete formalities to take his wife to Pakistan when he was caught. He spent the next three years in jail.

Visiting Indians in Pakistan face the same restrictions — and the same difficulties in obtaining a visa.

The Human Rights Commission of Pakistan (HRCP) has details of 61 people, mostly belonging to the Gujarati-speaking Hingoro community, arrested in India while returning to Pakistan between March and May this year, on charges of transgressing one or more of these rules.

Some overstayed their visas by just ten days, said Abdul Hai, a Karachi-based HRCP field officer. They have been charged with tampering with visas (changing the authorised dates and cities). Some are also charged with smuggling.

"Most had valid visas from the Indian High Commission in Islamabad. Some even had police reporting exempted. But they got different dates than they wanted, or fewer cities than they wanted to visit," he told IPS, showing a thick stack of photocopied passport and visa pages of the prisoners and the charges against some of them.

"They approached some ‘agent’ or other who took money — Rs 15,000 (180 US dollars) — to get their dates and cities changed," said Hai.

Most of those arrested are illiterate, or can read and write in Urdu or Gujarati only. "They don’t have the capability to tamper or overwrite their visas. When they give money to an agent, they believe they will get official documents. It is these agents who should be caught and punished, not these innocent people," he added.

"For offences which do not involve the use of lethal weapons, the governments should have a protocol that bars those violators from future entry, instead of clapping them in prison," prominent lawyer and human rights activist Asma Jahangir told IPS.

"In most cases, the people arrested innocently go to meet relatives. Adding cities and extending dates on visas is not such a big offence, but it’s a problem given the tensions. These long imprisonments are a disproportionately cruel punishment. The governments should concentrate on dissipating tensions rather than making ordinary people suffer."